Citation Nr: 1341401 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 12-30 317 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial compensable rating for service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran and his Spouse ATTORNEY FOR THE BOARD A.G. Alderman, Counsel INTRODUCTION The Veteran served on active duty from September 1960 to August 1962. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran appeared and provided testimony via videoconference before the undersigned Veterans Law Judge (VLJ) in November 2013. A transcript of the hearing has been associated with the electronic claims file in "Virtual VA". The Board has reviewed the Veteran's physical claims file and file on the "Virtual VA" system to insure a total review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran has level "II" hearing in the right ear and level "III" hearing in the left ear. 2. The Veteran does not have exceptional patterns of hearing impairment. CONCLUSION OF LAW The criteria for the assignment of an initial compensable rating for bilateral hearing loss are not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321(b)(1), 4.85, 4.86, Diagnostic Code 6100 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Duties to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). Proper notice from VA must inform the veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO's February 2012 letter to the Veteran satisfied the duty to notify provisions relating to the Veteran's claim at issue herein. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, including the opportunity to present pertinent evidence. Additionally, the letter notified him that he must submit, or request that VA obtain, evidence of the worsening of his disability and the different types of evidence available to substantiate his claim for a higher rating. Moreover, the letter informed him of the requirements to obtain higher ratings and notified him of the need to submit evidence of how such worsening effected his employment. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1275-82 (2009). For these reasons, the Board finds that the content requirements of the notice VA is to provide have been met and no further development is required regarding the duty to notify. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The duty to assist the Veteran has been satisfied in this case. The RO has obtained service and VA treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran appeared before the undersigned VLJ and presented testimony via videoconference in November 2013. The VLJ informed the Veteran of the criteria necessary for an increased rating and suggested that he seek testing at a private provider in support of his claim. See Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010) (holding that 38 C.F.R. § 3.103(c)(2) imposes on a VA hearing officer (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked). Moreover, the Veteran has been afforded a VA examination that is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Specifically, the May 2012 examiner took into account the Veteran's statements and treatment records, which allowed for a fully-informed evaluation of the claimed disability. Id. As such, there is no indication in the record that additional evidence relevant to the issues being decided herein is available and outside the record. See Pelegrini, 18 Vet. App. at 120. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). Increased Ratings The Veteran seeks an initial compensable disability rating for his service-connected bilateral hearing loss. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The basis for evaluating defective hearing is the impairment of auditory acuity as measured by puretone threshold averages within the range of 1000 to 4000 Hertz and speech discrimination using the Maryland CNC word recognition test. 38 C.F.R. § 4.85, DC 6100. Puretone threshold averages are derived by dividing the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz by four. Id. The puretone threshold averages and the Maryland CNC test scores are given a numeric designation, which is then used to determine the current level of disability based upon a pre- designated schedule. See Tables VI and VII in 38 C.F.R. § 4.85. Under these criteria, the assignment of a disability rating is a "mechanical" process of comparing the audiometric evaluation to the numeric designations in the rating schedule. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1993). For exceptional hearing impairment, 38 C.F.R. § 4.86 states that when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear is to be evaluated separately. Id. In some cases, when an examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties or inconsistent speech discrimination scores, Table VIA will be used, applying only the puretone averages to determine the current level of severity. 38 C.F.R. § 4.85(c). In this case, the Veteran had a VA audiology examination in May 2012. Puretone thresholds measured 35, 40, 90 and 95 decibels in the right ear at 1000, 2000, 3000, and 4000 Hz, respectively. Puretone thresholds measured 30, 40, 90 and 100 decibels in the left ear at 1000, 2000, 3000, and 4000 Hz, respectively. The Veteran's right ear hearing acuity measured a puretone threshold average of 65 decibels with speech recognition of 92 percent. This corresponds to a numeric designation of "II" under Table VI. 38 C.F.R. § 4.85. The Veteran's left ear hearing acuity measured a puretone threshold average of 65 decibels with speech recognition of 90 percent. This corresponds to a numeric designation of "III" under Table VI. Id. These combined numeric designations result in a rating of 0 percent under DC 6100. 38 C.F.R. § 4.85, Table VII. Accordingly, the Board finds that the examination report preponderates against a compensable rating for bilateral hearing loss. In addition to reporting objective test results, the VA audiologist described the functional effects caused by the hearing disability in the final report. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). Specifically, the Veteran reported that he does not hear well and said he had recurrent tinnitus, which was granted a separate evaluation. In a statement submitted with his claim, the Veteran said he cannot hear normal conversations. He always asks people to repeat themselves and keeps the television volume at intolerable levels. His inability to hear has caused arguments with his wife over whether he has heard her and over the volumes of radios and televisions. During his hearing before the Board, the Veteran testified that he keeps the volumes of his television and radio at levels that are intolerable to others so that he can hear. He also said he has difficulty hearing when using the telephone. His spouse said he cannot hear the telephone ringing or his alarm clock even when he is close to them. She said she often has to repeat herself when talking to him and that when she asks questions, he does not answer correctly because he cannot hear her. The Veteran testified that his right ear is better than his left. While the Veteran said he is fine in social situations, his spouse does not believe that he hears what people are saying. He noted that he retired at the age of 65, or approximately 11 years ago. He also reported that he had hearing aids during the time he was employed but did not wear them because he was afraid they would get dusty. He does not currently wear his hearing aids because he is afraid he will lose them. The Board has reviewed all of the evidence but finds that the Veteran's hearing loss is not of the severity to warrant a compensable rating. As noted above, the assignment of disability ratings for hearing loss is a mechanical process, and based on Table VI and his test results, a noncompensable evaluation is warranted. Additionally, as the record contains no evidence showing that the Veteran is entitled to a higher rating at any point during the instant appeal, no staged ratings are appropriate. See Hart, 21 Vet. App. 505. As a result, the Board finds that the current noncompensable evaluation is appropriate, and there is no basis for awarding a higher evaluation for bilateral hearing loss. 38 C.F.R. §§ 4.7, 4.85, 4.86, Diagnostic Code 6100. Extraschedular Consideration While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether the claim should be referred to the VA Director of the Compensation and Pension Service for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). The governing norm for an extraschedular rating is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or necessitated frequent periods of hospitalization so as to render the regular schedular standards impractical. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the Veteran contends that he should be considered for an extraschedular rating based on his profound hearing loss at 6000 and 8000 Hz. However, the Board observes that these frequencies are not considered in the diagnostic criteria and are not for consideration when rating the hearing loss disability. The Board has considered the Veteran's and his spouse's reports of his difficulty hearing telephones, televisions, radios and normal conversation. However, such effects do not take the Veteran's case outside the norm so as to require consideration of a higher evaluation on an extra-schedular basis. See 38 C.F.R § 3.321(b)(1). Further, none of the functional effects of the Veteran's hearing evidenced in his VA examination, testimony before the Board, or other parts of the record rise to the level of "marked interference with employment" or "frequent periods of hospitalization." See 38 C.F.R. § 3.321. Additionally, although based on the inclusion of "such as" the regulation contemplates "related factors" other than "marked interference with employment" or "frequent periods of hospitalization, none of the Veteran's alleged functional effects evidenced by his VA examination are of a severity contemplated by the regulation. Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). Additionally, there is no indication in the record that the Veteran is unemployable on account of his hearing loss. Although the Veteran is retired and not currently working, he has not asserted, and the facts on file do not show, that he is unable to work due to his hearing disability. As such, the Board finds that the issue of entitlement to a total disability evaluation based on individual unemployability (TDIU) has not been raised by the evidence of record as part of the Veteran's claim for an increased rating for bilateral hearing loss. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009) (holding that the issue of entitlement to TDIU is part of an increased rating claim when that issue is raised by the record); see also Comer v. Peake, 552 F.3d 1362, 1366 (Fed.Cir.2009) (holding that the issue of entitlement to TDIU is raised whenever there is "cogent evidence of unemployability, regardless of whether [the claimant] states specifically that he is seeking TDIU benefits"). For the foregoing reasons, the Board finds that the claim for a compensable disability rating for service-connected bilateral hearing loss must be denied. The benefit-of-the-doubt doctrine is not for application. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to an initial compensable rating for service-connected bilateral hearing loss is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs